State v. Lail

903 S.E.2d 204

STATE of North Carolina

v.Jonathan Ray LAIL, Defendant.

No. COA23-845

Court of Appeals of North Carolina.

Filed June 4, 2024

Appeal by Defendant from judgment entered 1 November 2022 by Judge Karen Eady Williams in Catawba County Superior Court. Heard in the Court of Appeals 20 March 2024. Catawba County, Nos. 20 CRS 3825, 51926

Attorney General Joshua H. Stein, by Special Deputy Attorneys General Daniel P. O’Brien & Lauren M. Clemmons, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for Defendant-Appellant

CARPENTER, Judge.

Jonathan Ray Lail ("Defendant") appeals from judgment after a jury convicted him of two counts of each of the following: statutory rape, indecent liberties with a child, and incest with a child. On appeal, Defendant argues that the trial court: (1) abused its discretion by excluding a handwritten note (the "Note"); (2) plainly erred by admitting vouching testimony; and (3) plainly erred by admitting unreliable expert testimony. After careful review, we agree with Defendant’s first argument. Because Defendant was prejudiced by the Note’s exclusion, he is entitled to a new trial. So although we agree with the dissent’s analysis of Defendant’s remaining arguments, we need not reach them.

I. Factual & Procedural Background

On 5 November 2020, a Catawba County grand jury indicted Defendant for two counts each of statutory rape, indecent liberties with a child, and incest with a child. On 24 October 2022, the State began trying Defendant in Catawba County Superior Court Trial evidence tended to show the following.

At around 4:00 a.m. on 25 April 2020, Corporal Max Priest of the Catawba County Sheriff’s Office responded to a 911 call from a couple in Newton, North Carolina. The couple called 911 because an unknown girl ("Complainant") was knocking on their front door. When Corporal Priest arrived at the couple’s home, Complainant was sitting on the front porch. Complainant told Corporal Priest that she was sixteen years old, that Defendant kicked her out of the house, and that she was going to see her boyfriend in Hickory, North Carolina.

Complainant lied to Corporal Priest about her age; she eventually admitted she was thirteen years old. She also lied about Defendant kicking her out of their home; she eventually admitted she was running away from home. Indeed, Complainant later said that she was "upset, angry" with Defendant because he cancelled a sleepover with her friends. Complainant lied about going to see a boyfriend in Hickory, too.

Complainant also told Corporal Priest that Defendant sexually assaulted her. After hearing this, Corporal Priest drove Complainant to the sheriff’s office, where Complainant spoke with a Department of Social Services case worker. The case worker interviewed Complainant, and Complainant alleged two instances of sexual abuse by Defendant. The case worker determined a forensic examination and interview were needed.

A forensic examination and interview, however, required Defendant’s consent, so sheriff’s deputies went to Defendant’s home to request his consent. Defendant consented. In the meantime, the case worker took Complainant to the Child Advocacy Center.

At the Child Advocacy Center, Complainant alleged three incidents of sexual abuse by Defendant. Julia Wetmore, a pediatric nurse practitioner, examined Complainant, Nurse Wetmore found Complainant was generally healthy and cooperative, but anxious, during the examination. During the genital exam; Nurse Wetmore observed a scar on Complainant’s hymen, which Nurse Wetmore associated with blunt-force trauma.

At trial, Complainant testified that Defendant sexually assaulted her multiple times. Defendant testified, too, and denied Complainant’s allegations. And in order to defend himself, Defendant challenged Complainant’s credibility.

Attempting to impeach Complainant on cross-examination, Defendant tried to introduce the Note and to question Complainant about it. The Note states that Complainant snuck out of her bedroom window one night to meet "Larry." From Defendant’s perspective, the Note was probative of two things: (1) Complainant’s lack of credibility; and (2) that the perpetrator of Complainant’s alleged assaults was actually Complainant’s boyfriend—possibly "Larry." Importantly, the State did not object to the Note on Rule 412 grounds, likely because the Note did not disclose any sexual activity by Complainant that would trigger Rule 412 issues.¹

Rather, the State objected to the Note for lack of relevance, lack of authentication, and lack of knowledge. During voir dire concerning the Note’s admissibility, Complainant initially testified that she did not recognize the Note. Then she testified that she did not remember writing the Note. Yet despite not "recognizing" or "remembering" the Note, Complainant testified that the Note was in her handwriting.

Complainant also testified that she never met Larry in person, even though she "thought" Larry was her boyfriend when she wrote the Note. She further explained that the Note:

might have come from a story because I used to write stories based off of people in my life[,] and I used to use people’s names that were in my life to write little stories. So it could have been that or it could have been a dream I had or anything really.

Initially, the trial court made a speculation inquiry, then moved to hearsay. Specifically, the trial court was concerned about whether the Note was being offered for "the truth of the matter asserted." Here is the relevant colloquy:

Trial Court: And here’s my concern, the [Note] will be offered for the truth of the matter asserted therein, and granted, she was saying that’s her handwriting, so that I agree with you on that.

….

But my point is if the document’s being offered to the jury for the truth of the matter asserted therein, and that document’s saying she went out her window, someone’s meeting her in a car, if that’s the truth of the matter asserted therein, but she’s saying that’s not what happened.

….

And so that document doesn’t tell me anything besides she wrote something down. What she wrote down, the truth of what she wrote down, is at issue. It’s being offered for—I can’t think of a purpose other than the truth of the matter is what you’re trying to get in to the jury that this is, in fact, what happened.

The trial court then engaged with how various jurisdictions handle similar documents. Then returning to the Note, the trial court held it was inadmissible. The court said:

Trial Court: So I will not allow you to admit that document for the purpose of showing anything could be remotely true in that statement because she’s not going to say it. If she said yes, it happened, that would be one thing; but she’s not admitting to any of that being truthful. At best it might be fanciful or fantasy of things she was just writing.

Then, almost offhandedly, the trial court said: "And I also think it’s more prejudicial than probative, and therefore I will not allow that to be admitted." Defense counsel responded: "Okay. Your Honor, for the purposes of possible appellate review, since we might start tomorrow depending on what happens …." The trial court then interjected: "I doubt it but for purposes of appellate review that objection will be noted for the record." And to confirm that his objection was preserved, defense counsel reiterated: "And just for the potential appellate review I’d ask to go ahead and put this in the clerk’s file for review by the Court of Appeals should it come to that." The trial court confirmed: "Definitely."

Without considering the Note or corresponding testimony, the jury convicted Defendant of all offenses. The trial court entered two judgments: one sentencing Defendant to between 556 months and 797 months of imprisonment; and another sentencing Defendant to between 240 and 348 months of imprisonment, to be served after the end of the first sentence. Defendant gave oral notice of appeal in open court.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issues

The issues on appeal are whether the trial court: (1) abused its discretion by excluding the Note; (2) plainly erred by admitting vouching testimony; and (3) plainly erred by admitting unreliable expert testimony.

IV. Analysis

First on appeal, Defendant argues that the trial court abused its discretion by excluding the Note, thus entitling him to a new trial. We agree with Defendant Because Defendant’s first argument entitles him to a new trial, we will not address his remaining arguments.

A. Preservation

"No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court …." N.C. Gen. Stat § 8C-1, Rule 103(a)(1) (2023); see also N.C. R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context").

B. Standard of Review

[1] We review Rule 403 rulings for abuse of discretion, which "results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

[2] Of particular relevance here, a mistake of law is an abuse of discretion. See State v. Rhodes, 366 N.C. 532, 535-36, 743 S.E.2d 37, 39 (2013) (citing Koon v. United States, 518 U.S. 81, 100, 116 S. Ct 2035, 2047, 135 L. Ed. 2d 392, 414 (1996)); In re S.R., 384 N.C. 516, 520, 886 S.E.2d 166, 171 (2023) (citing Rhodes, 366 N.C. at 536, 743 S.E.2d at 39) ("[A]s is always true, a mistake of law is an abuse of discretion."). In other words, a trial court acts arbitrarily when it applies an incorrect legal...